eehee. archives/76-1484... · 2012. 3. 8. · eehee. See post, at 7. If the Framers had believed that the press was entitled ~o a special set·of procedures when government authorities

RDC I 5/1/78

ZURCHER v. STANFORD DAILY, No. 76-1484 & No. 76-1600

MR. JUSTICE POWELL, concurring.

I join the opinion of the Court, and I ... write simply

to emphasize what I take to be the fundamental error of

the dissenting opinion. As I understand the dissent, it

reads the First Amendment

itt ~ififaati; aR a~~teRiiilll&Rti wpen ehat AmenelmentC..

Thus, we are the dissent to read the Fourth

Fourth Amendment contains

e~~ehee. See post, at 7.

If the Framers had believed that the press was entitled

~o a special set · of procedures when government authorities

required evidence in its possession, ~--~~3~ ..... we certainly could expect that they would have indicated as much in the

terms of the Fourth Amendment. As the opinion of the Court

points out, the struggle from which the Fourth Amendment

emerged was that between Crown and Press. Ante, at 15.

The Framers were painfully aware of that history, and their

solution was the Fourth Amendment. Ante, at 17. r! n Hence,

there is every reason to believe that the usual procedures

contemplated by the Fourth Amendment do indeed apply to the

2.

press as to every other citizen.

This is not to say that a warrant that would be

reasonable in supporting the search of an apartment or auto-

mobile _ necessarily would be reasonable in supporting the

search of a ... newspaper office. But as the Court points

out, if the requirements of reasonableness and specificity

are stringently applied, the dangers perceived by the dissenting

Ibirlr opinion are likely to be avoided:-]The magistrate must judge

the reasonableness of __. every warrant in light of the

circumstances of each case, .. carefully considering the

situation of the premises and the position of the owner or

occupant. For example, if a single document is sought,

~res;oses J and the only fact presented is that itBhaY"il!lf somewhere

inside the" office building of a huge met·ropolitan newspaper,

the specificity requirement ~'z~eil•? .. .- might not be met, since

the disruption that would ensue upon a room-by-room search

could be well nigh total.

Considerations ~ such as this, however, are the province

of the ~ e,·~

Fourth Amendment){'\here is no authorityAin history or

in the Constitution itself for exempting classes of persons

from its reach.

' .

CHAMBERS DRAFT

SUPREME COURT OF THE UNITED STATES

Nos. 76-1484 AND 76-1600

James Zurcher, Etc., et al., Petitioners, 76-1484 v.

The Stanford Daily et al.

Louis P. Bergna, District Attorney, and Craig Brown, Petitioners,

76-1600 V.


[May -, 1978]

MR. JusTICE PowELL, concurring.

On Writs of Certiorari to the United States Court of Appeals for the Ninth Circuit.

I join the opinion of the Court, and I write simply to emphasize what I take to be the fundamental error of the dissenting opinion. As I understand the dissent, it reads the First Amendment as implicitly carving an exception out of the Fourth. Thus, we are admonished by the dissent to read into the Fourth Amendment, as a new and per se exception , the rule that any search of an entity protected by the Press Clause of the First Amendment is unreasonable. See post, at 7. I see no constitutional basis for such a reading.

If the Framers had believed that the press was entitled to a special procedure, not available to others, when govern-ment authorities required evidence in its possession, one would have expected the terms of the Fourth Amendment to reflect that belief. As the opinion of the Court points out, the struggle from which the Fourth Amendment emerged was that between Crown and press. Ante, at 15. The Framers were painfully aware of that history, and their response to it was the Fourth Amendment. Ante, at 17. Hence, there is every reason to believe that the usual procedures contem-plated by the Fourth Amendment do indeed apply to the press, as to every other person.

76-1484 & 76-1600-CONCUR (A)

ZURCHER v. STANFORD DAILY

This is not to say that a warrant which would be sufficient to support the sea.rch of an apartment or an automobile neces-earily would be reasonable in supporting the search of a newspaper offlce'l As the Court's opinion makes clear ,~he magistrate must judge the reasonablei1ess of every warrant in light of the circumstances of the particular case, carefully considering the description of the evidence sought, the situa-tion of the premises, and the position and interests of the owner or occupant. If the reasonableness and specificity re-quirements are duly applied, the dangers perceived by the dissenting opinion are likely to be minimal. ~loee~ia!~.~--

In any event, considerations such as these are the province of the Fourth Amendment. There is no authority either. in history or in the Constitution itself for . exempting certain

sses of personx :rom its reach.

'l'o: Th.f' Ct u•f,,f•.;t "e ..

~c:4~~~ ~~f~~ '~£~~ .. ~ ~iA~r~~

Mr. Just ic~ B.·-mnan Mr. Jur t i ~'3 White Mr. Justtoe Marshall Mr. Justi.to Bl1.:kmun

/Mr. JustL.:e Powell Mr . Justice Rehnquist Mr. Justice Stevens

From: Mr. Justice Stewart APR 19 /b

Circulated: _____ _

_ .., ~ ~ .k, .. _ .. . ~ ,_ -ALR~ let DltAFT _.~.,..- --~ -·-~CT--- B oi.rculqted: _____ _

~ SUPREME COURT OF THE UNITED STAT.m! r.~~~: e)

1;!:::';2 Nos. 76-1484 AND 76-1600


The Stanford Daily et al. 4.-~ ? Louis P. Bergna, District Attorney, ~ , and Craig Brown, Petitioners,


76-1600 v. ~ ~ ~- The Stanford Daily et al. ~~~ ~~ti ~~~ r~.

u

1[May -, 1978]

Mn. JusTICE STEWART, dissenting.

Believing that the search by the police of the offices of The Stanford Daily infringed the First and Fourteenth Amend-ments' guarantee of a free press, I respectfully dissent.1

I It seems to me self-evident that police searches of news-

paper offices burden the freedom of the press. The most immediate and obvious First Amendment injury caused by such a visitation by the police is physicaJ disruption of the operation of the newspaper. Policemen occupying a news-room and searchi11g it thoroughly for what may be an extended period of time 2 will inevitably interrupt its normal operations, allcl thus impair or even temporarily prevent the processes of ncwsgathering, writing, editing, and publishing. By contrast,

1 I ngrPc with thfl C'ourt that t.lw Fow·th Amendment does not forbid the i~Hnnncr of srareh warrant.;tation in LoH Ange!Cfl lasted over eight hours. Note, Sca,rrh and Seizure of tlw :VJedia.: A St.a.t.u1ory, Fourth Amendment and Fir~t Amendmell1 Analy~is, 28 Sian . L. Rev. 957,957-959 (1976) .

76- 1484 & 7f:HGOO- DISSENT

2 ZURCHER u. STANFORD DAILY

a subpoena would afford the newspaper itself an opportunity to locate whatever material might be requested and produce it.

But there is another aud more serious burden on a free press imposed by an unannounced police sea.rch of a newspaper office: the possibility of disclosure of information received from confidential sources, or of the identity of the sources them-selves. Protection of those sources is necessary to ensure that the press can fulfill its constitutionally designated function of informing the public/ because importa.r1t information can often be obtained only by an assurance that the source will not be revealed. Branzburg v. Hayes , 408 U. S. 665, 725-736 (djs-senting opinion).~ And the Court has recognized tha.t "with-out some protection for seeking out the news, freedom of the press could be eviscerated." Pell v. Procunier, 417 U. S. 817, 833.

Today the Court does not question the existence of this constitutional protection, but says only that it is not "con-vinced ... that confidential sources will disappear and that the press will suppress news because of fears of warranted searches." Ante, at 17- 18. This facile conclusion seems to me to ignore common experience. It requires no blind leap of faith to understand that a person who gives information to a journalist only on condition tha.t his identity will not ~ revealed wil b less likely to give that information if he knows that, despite the journalist's assurance, his identity 1yay in fact be disclosed. And it cannot be denied that con-~dential inform~.tion may be exposed to the eyes of police offi-cers who execute a search warrant by rummaging through the

3 See Mills v. Alabama, 384 U. S. 214, 219 ; New York Times Co . v. Sullivan, 376 U. S. 254, 269 ; Grosjean v. American Press C'o. , 297 U. S. 2:~3 , 250.

4 Hrcognizing the importancr of lhi~ confidrn1ial rdation:ship, 26 States have rnacted so-ca lled "shic lrllaw~" prot rcting rcport rr~. Note, Th

.. , ;.,, ·'

76--1484 & 76-1600--DISSENT

ZURCHER v. STANFORD DAILY 3

files, cabinets, desks and wastebaskets of a newsroom.r. Since the indisputable effect of such searches will thus be to prevent tt newsman from being able to promise confidentiality to his potential sources, it seems obvious to me that a journalist's access to information, and thus the public' will---thereby be impaired.6

A search warrant allows police officers to ~sack the files of a newspaper, reading each and every document until they have found the one named in the warr~tnt/ while a subpoena would permit the newspaper itself to produce only the specific docu-ments requ~sted. A search. unlike a subpoena, will therefore lead to the needle1s exposure of confidential information com-pletely un~ed to the purpose of the investigation. The knowledge that police officers ca.u make an unannounced raid on a newsroom is thus bound to have a deterrent effect on the availability of confidential news sources. The end result, wholly inimical to the First Amendment, will be a, diminish-ing flow of potentially important information to the public.

~In this case, the policemen executing the search warrant were con-cededly in a position to read confidential material unrelated to the object of their search; whether they in fact did so is disputed.

6 This prospect of lo:sing access to confidential sources may cause report-er:; to enagage in "self-censor:ship," in order to avoid publicizing the fa.ct that they may have confidential information. See New fo1'k Times Co. v. Sullivan, 376 U. S. 254, 275; Smith v. California, 361 U. S. 147, 154. Or, journalists may destroy not~s and photograph:; rather than save them for reference apd use in future stories. Either of these indirect effects of police searche.s would further lessen the flow of news to the public.

7 The Court says that "if the requirement.., of specificity a11d reasonable-ness are properly applied, policed and observed" there will be no oppor-tunity for the polioo to "rummage at large in newspaper files." Ante, at 17. But in ()rder to find a particular document., no matter how :;pecifically it is identified in the warrn.nt, the police will have to search every place where it might be-inclncling, presumably, evrry file in the office-and to examine each document they find to see if it is the correct one. I thus fail to see how the Fourt.h Amendment would provide an effective limit to thrse searches.

J

,./

'15- 1484 & 76-1600-DISSENT

4 ZURCHER v. STANFORD DAILY

One need not rely on mere intuition to reach this conclusion. The record in this case includes a.ffidavits not only from mem-bers of the staff of The Sta-pford Daily but from many profes .. sional journalists and editors, attesting to precisely such persoHal experiellce.8 Despite the Court's rejection of this uncontroverted ~yidence, I believe it clearly establishes that unannounced police searches of newspaper offices will signifi~ cantly burden the constitutionally protected function of the press to gather news and report it to the public.

II

In Branzburg v. Hayes, supra, the more limited disclosure of a journalist's sources caused by compelling him to testify was held to be justified by the necessity of "pursuing and prosecuting those crimes reported to the press by informants and in thus deterring the commission of such crimes in the future." 408 U. S., at 695. The Court found tha.t these important societal interests would be frustrated if a reporter were able to claim a.n absolute privilege for his confidential sources. In t.he present c~e, however, the respondents do not claim that any of the eyidence sought was privileged from disclosure; they claim only that a subpoena would have served equally well to produce that evidence. Thus, we are not con-cerned with the principle, central to Branzburg, that "'the public has a right to every man's evidence,'" id., at 688, but only with whether any significant societal interest would be

· impaired if the police were generally required to obtain evi-

s According to these uncontmdicted affidavits, when it becomeH known that. a newsman cannot guarantee confidcnt.ialit~' , potential sources of infor-mat.ion oft.en become unavailable. Moreover, efforts nrr somrtimes made, occasionally by force, to prevent reporters and photographers from cover-ing tww;;worthy events, bec:tusc of fear that the policr. will ;;eize tlw news-man';,; notes or photograph~ as evidence. The affidavits of the members of thf' staff of The Stanford Daily give examples of how this very search produced such an impact, on the Da.ily's own journali.~tic functions.

76-1484 & 76-1600-DISSENT


deuce from the press by means of a subpoena rather than a search.

It is well to recall the actual circumstances of this case. The application for a warrant showed only that there was reason to believe that photographic evidence of assaults on the police would be found in the offices of The Stanford Daily. There was no emergency need to protect life or property by an --immediate searc . The evidence sought was :qat contraband, but material obtained by the Daily in the normal exercise of its journalistic function. Neither t~e Daily nor any member of its staff was suspected of criminal activity. And there was no showing the Daily would not respond to a subpoena com· manding production of the photpgraphs, or that for any other reason a ~ubpoena could not be obtained. Surely, then, a subpoena duces tecum would have been just as effective as a police raid in obtaining the production of the material sought by the Santa Clara Couny District Attorney.

The District · Court and the Court of Appeals clearly recog-nized that if the affidavits submitted with a search warrant applicatio11 should demonstrate probable cause to believe that a subpoentt would be impractical, the magistrate must have the author+ty to issue a warrant. In such a case. by definition, a subpoen~ would not be adequate to protect the relevant societal inf,erest. But they held, and I agree, that a warrant should is~4e only after the magistrate has perfor~ed the care-ful "balai1c[ing] of tpese vital constitutional and societal interests." Branzbur(l v. Hayes, supra, at 710 (concurring opinion of MR. JusTICE PowELL) .9

9 The petitioners have arguffi here that in fact there was reason to be-lieve t:hat the Daily would not. hon9r a subpoena. Regardless of the pro-bative value of thi~ information, it is irrelevant, since it. was n~t before the magistrate when he issued tj1e ' warrant. Whiteley v. Warden, 401 U. S. 560, 565 n . 8; Spinelli v. United States, 393 U. S. 410, 413 n. 3; Aquilar v. 'l'exas, 37 U. S. 108, 109 n. I ; see Johnson v. United States, 333 U. S. 10, 13-14.

/

76-1484 & 76-1600-DISSENT


The decisions of this Court establish that a prior adversa~ judicial hearing is ge1wrally required to assess in advance a.ny ~hreatened invasion of First Amendment rights. 10 A search by police affords no timely opportunity for such a hearing, ~ince a search w~rtant is ordinariJy issue~ ex parte upon th~ affidavit of a policeman or prosecutor. 'l'here is no oppor-tunity to challenge th~ necessi~y for ~h~ search until after ~t has occpred f;L.fl~ the cqn!'ltitutional protection of the news-paper has been irretrievab~y invad~d.

On the other h1tng, a Sl,lhpoen{l would !1-llow a newspaper, through a motion to quash, an opportunity for an !tdversjlcy hearing with resp~ct to the productiqn of any material which a prosecutor rn.ight thipk i~ in its possession. This very prin, ~iple WIJ-S emphasized in the Bran~ burg cas~:

'1 [I] f the newsman is called upon to give information hearing only a remote and tenuous relationship to the subject of the investigation, or if he has some other reason to believe that his testimony implicates confidential source relationships without a legitimate need of law enforcement, he will have access to the Court on a motion to quash and an appropriate protective order may be entered." 408 U. S., at 710 (concurring opinion of MR. JusTICE PowELL); see also id., at 707-708.

lf, in the present case. The Stanford Daily had been served with a subpoena. it would have had an opportunity to demon-strate to the court what the police ultimately found to be true-that the evidence sought did not exist. The legitimate needs pf government thus would have been served without ' infringing the freedom of the press.

to E. g. , United States \'. 'l'hirty-SPven Photooraphs, 402 U. S. 363; Carroll v. Princess Anne, a93 0. S. 175 ; Freedman v. Maryland, 380 U.S. 51; cf. Roaden v. Kentucky, 413 U. S. 496; A Quantity of Copies of B ooks v. Kansas,'378 U.S. 205; Marcus v. Search Warrant , 367 U.S. 717.

76-14 4 & 76-HiOO-- DISSENT

ZURCHEH v. STANFOHD DAILY 7

III!

Perhaps as a matter of abstract policy a newspaper office should receive no more protection from unannounced police searches than, say. the office of a doctor. But we are here to uphold a Constitution. And our Constitution does not ex-licitly protect the practice of medicine from all abridgment by government. It does explicitly protect the freedom of the press.

For these reasons I would affirm the judgment of the Court of Appeals.

fV ,J/ tl/lk .

~ SUPREME COURT OF THE UNITED STATES

Nos. 76-1484 AND 76-1600




76-1600 v. The Stanford Daily et al.

[May -, 1978]

MR. JuSTICE PowELL, concurring.


I join the opinion of the Court, and I write simply to emphasize what I take to be the fundamental error of the dissenting opinion. As I understand dissent, it would read into the Fourth Amendment, as a new and per se exception, the rule that any search of an entity protected by the Press Clause of the First Amendment is unreasonable. See post, at 7. I agree with the Court that there is no cGilstitutional basis for such a reading.

If the Framers had believed that the press was entitled to a special procedure, not available to others, when govern-ment authorities required evidence in its possession, one would have expected the terms of the Fourth Amendment to reflect that belief. As the opinion of the Court points out, the struggle from which the Fourth Amendment emerged was that between Crown and press. Ante, at 15. The Framers were painfully aware of that history, and their response to it was the Fourth Amendment. Ante, at 17. Hence, there is every reason to believe that the usual procedures contem-plated by the Fourth Amendment do indeed apply to the press, as to every other person.

76-1484 & 76-1600-CONGOR (A)


This is not to say that a warrant which would be sufficient to support the search of an apartment or an automobile neces-sarily would be reasonable in supporting the search of a newspaper office. As the Court's opinion makes clear, ante, at 16, 17, the magistrate must judge the reasonableness of every warrant in light of the circumstances of the particular case, carefully considering the description of the evidence sought, the situation of the premises, and the position and interests of the owner or occupant. While there is no justifica-tion for the establishment of a separate Fourth Amendment procedure for the press, a magistrate asked to issue a warrant for the search of press offices can and should take cognizance of the independent values protected by the First Amendment-such as those highlighted by the dissent-when he weighs such factors. If the reasonableness and specificity requirements are thus applied, the dangers perceived by the dissenting opinion are likely to be minimal. Ibid.

In any event, considerations such as thesfl are the province of the Fourth Amendment. There is no authority either in history or in the Constitution itself for exempting certain classes of persons or entities from its reach.*

*An example of the harm that might. follow adoption of a per se rule banning searches of the press is furnished by respondent's announced policy of destroying any pl1otographs that might aid prosecution of pro-testors. Appendix 118, 152-153. At oral argument., counsel for respond~ ent stated that this policy conceivably could have extended to the destruc~ tion of evidence of any crime:

"QUESTION: Let us assume you had a picture of the commission of a crime. For example, in banks they take pictures regularly of, not only of robbery but of murder committed in a bank and there have been pic~ tures taken of the actual pulling of the trigger or the pointing of the gun and pulling of the trigger. There is a very famous one related to the assassination of President Kennedy.

"What would the policy of the Stanford Daily be with respect to that? Would it feel free to destroy it at any time before a subpoemt had been .served?

"MR FALK: T·he--UteraUy read, the policy of the Daily requires mJ~

76-1484 & 76-1600 (A)


to give an affirmative answer. I find it hard to believe that in an examplt> such as that., that the policy would have been carried out. It w;u; not addressed to a picture of that kind or in that context.

"QUESTION: Well, I am sure you were right. I was just getting to the scope of your theory.

"MR. F ALK: Our-" QUESTION: What is the difference between the pictures Justice

Powell just described and the pictures they were thought to have? "MR. FALK: Well, it simply is a distinction that-"QUESTION: Attacking police officers iutead of the President. That

is the only difference."

While the existence of this policy was not before the magistrate at the time of the warrant's issuance, 353 F. Supp. 124, 135 n. 16 (ND Cal. 1972), it illustrates the possible danger::; of creating separate standards for the press alone,

1st DRAFT

·\LE coPY PLEASE RETURN

TO F\LE


Nos. 76- 1484 AND 76- 1600


The ~tanford Daily et al.

Louis P. Bergna. District Attorney, and Craig Brown, Petitioners,


[May -, 19781

MR. JutiTlCJ.> Pow~LL, concurring.


r join the opinion of the Court. and I write simply to emphasize what 1 take to be the fundameutal error of the dissenting opinion. As I understand the dissent. it would read into the Fourth Amendment. as a new and per se exception. the rule that any search of an entity protected by the Press Clause of the First Amendment is unreasonable so long as a subpoena could bp used as a substitute procedure. Even aside fro Ill the clifficul ties in vol vcd in deciding on a case-by-case basis whether a subpoena can serve as an adequate substitute/·

1 For PxamplP, rr;.;pondrnt had announcPd a policy of dr~troying 11ny photcgraph~ th;1t might aid pro:-

76-1484 & 76-1600-COKCtTH (A)

2 ~PHCBJ.;H u. STA:\FOlW l>AlLY

T agree with the ( 'ourt that tlwre is no constitutional basis for such a rea eli ng.

If the Franwrs had believed that the press was entitled to a special procedure. not availabk to others. when govern-ment authorities required evidence in its possession. one would have expected the terms of the Fourth Amendment to reflect that belief. As tht> opinio11 of tlw Court points out. the struggle froltl which the Fourth An1endment emerged was that between Crown and press. A1de, at 15. The Frarners were painfully av.-are of that history. and tlwir response to it vvas thP Fourth Amendment. A 11 te, at 17. Hence. there is rvery reason to lwlive that tlw usual procedures contt>m-

policy of tlw Stanford Daily

7tl-1484 & 76-1600 (A)

ZUHCHER v. STANF'OHD DAlLY 3

plated by the Fourth Amendment do indeed apply to the press, as to every other person.

This is not to say that a warrant which would be sufficient to support the search of an apartment or an automobile neces-sarily would bP reasonable in supporting the search of a uewspaper office. As the Court's opinion makes clear. ante, at 16, 17. the magistrate must judge the reasonableness of every warrant in light of the circumstances of the particula.r case, carefully considering the descriptioll of the evidence sought. the situation of the premises, and the position and interests of the owner or occupant. While there is no justifica-tion for the establishment of a separate Fourth Amendment procedure for the press, a magistrate asked to issue a warrant for the search of press offices ca11 and should take cognizance of the independent va.lurs protected by the First Amendment--such as those highlighted by the dissent-when he weighs such factors. If thr reasonableness and particularity requirements are thus applied. th

. . , ..

let DRAFT

SUPREME COURT OF THE UNITED STATm

Nos. 76-1484 AN D 76-1600

James Zurcher, Etc., et al., Petit ioners, 76-1484 v.


Louis P. Bergna, District Attorney, and Craig Brown, Petitioner!!,

7{}-1600 v. The Stanford Daily et al.

[May -, 1978]



I join the opinion of the Court, and I write simply t(} emphasize what I take to be the fundamental error of the dissenting opinion. As I understandJ dissent, it would read into the Fourth Amendment, as a new and per se exception,

~ the rule that ff!!:)L search of an entity protected by the Press Clause of the First Amendment is unreasonable> ~ee ~88t; ~I agree with the Court that there is no constitutional

_,/ b~fs for such a reading. If the Framers had believed that the press was entitled to

a special procedure, not available to others, when govern-ment authorities required evidence in its possession, one would have expected the terms of the Fourth Amendment to reflect that belief. As the opinion of the Court points out, the struggle from which the Fourth Amendment emerged was that between Crown and press. Ante, at 15. The Framers were painfully aware of that history, and their response to it was the Fourth Amendment. Ante, at 17. Hence, there is every reason to believe that the usual procedures contem-plated by the Fourth Amendment do indeed apply to the press, as to every other person.

-So \ oVIj a.S C...

.subp"e1\ -.. ~ ~ u s~~ ai Cl .s vbst11vi(. f'C'b teav(e. E-le..n cui d.J, -h--IY" J

76-1484 & 76-1600-CONC11R (A)

ZURCHER v. STANFORD DAILY

This is not to say that a warrant which would be sufficient to support the search of an apartment or an automobile neces-sarily would be reasonable in supporting the search of a newspaper office. As the Court's opinion makes clear, ante, at 16, 17, the magistrate must ju'dge the reasonableness of every warrant in light of the circumstances of the particular case, carefully considering the description of the evidence sought, the situation of the premises, and the position and interests of the owner or occupant. While there is no justifica,-tion for the establishment of a separate Fourth Amendment procedure for the press, a magistrate asked to issue a warrant for the search of press offices can and should take cognizance of the independent values protected by the First Amendment-such as those highlighted by the dissent-when he weighs such factors. If the reasonableness and ~f!J~ei~ity requirements are p~or·Lc.• .. dart'f7 thus applied, the dange~er.ceived by the dissenting opinion

. are likely to be minimal. Ibid. A In· any event, considerations such as thes~ are the province

of the Fourth Amendment. There is no authority either in history or in the Constitution itself for exempting certain classes of persons or entities from its reach.' '2.-

*An example of the harm that might follow adoption of a per se rule banning searches of the press is furnished by respondent's announced

,; ·policy of destroying any photographs that might aid prosecution of pro-testors. Appendix 118, 1.12-153. At oral argument., counsel for respond~ ent stated that this policy conceivably could have extended to the destruc~ tion of evidence of any crime:

"QUESTION: Let us assume you had a picture of the commission of a -crime. For example, in banks they take pictures regularly of, not only -of robbery but of murder committed in a bank and there have bE'en pic-tures taken of the actual pulling of the trigger or the pointing of the gun -and pulling of the trigger. There is a very famous one related to the .assassination of President Kennedy.

"What would the policy of the Stanford Daily be with respect to that? Would it feel free to destroy it at any time before a subpoena had been .served?

"MR FALK:: The-literally read, the policy of the Daily requires me

76-1484 & 76-1600 (A)


to give an affirmative answer. I find it. hard to believe that in an example such as that., that the policy would have been carried out. It was not acldressed to a picture of that kind or in that context.



Powell just described and the pictures they were thought to have? "MR. FALK: Well, it simply is a distinction that-"QUESTION: Attacking police officers intead of the President. That

is the only difference." While the existence of this policy was not before the magistrate at the time of the warrant's issuance, 353 F. Supp. 124, 135 n. 16 (ND Cal. 1972), it illustrates t.he possible danger · of creating separate ~:;tandards for the press alone.

./

. '.

~ @RAFr


Nos. 76-1484 AND 76-1600





[May -, 1978]



I join the opinion of the Court, and I write simply to emphasize what I take to be the fundamental error of the dissenting opinion. As I understand.Ldissent, it would read

\ into the Fourth Amendment, as a new and per se exception, ~- ue rule that )illJI search of an entity protected by the Press

Clause of the First Amendment is unreasonabl~ Sgg ~Iii~ , ~ I agree with the Court that there is no constitutional

basis for such a reading. _ , If the Framers had believed that the press was erl.titled to

a special procedure, not available to · others, when govern-ment authorities required evidence in its possession, one would have expected the terms of the Fourth Amendment to reflect that belief. As the opinion of the Court points out, the struggle from which the Fourth Amendment emerged was that between Crown and press. Ante, at 15-.. The Framers • were painfully aware of that history, and their response to it was the Fourth Amendment. Ante, at 17. Hence, there is ' every reason to believe that the usual procedures contem-plated by the Fourth Amendment do indeed apply to the press, as to every other person. ·

' .

• >

so lo"J a.s t:l. .s v.b l 'oet10.. C.,.() VI d.. b

lfp/ss 5/10/78 Rider A, p. 2 (Zurcher}

!i/' ~aA:!:'l~1 I ~espondent had announced a policy of destroying

any photographs that might aid prosecution of protestors,

however crimical tlxieir oondu.st---m·i~t-be f.. App. 118,

152-153. While this policy probably reflected the deep

feelings of the Vietnam era, and one may assume that under

normal circumstances few, if any, press entities would

adopt a policy so hostile to l.efjitimat~aw enforcement, { r~f~"'~ P''~':}lc

tbl~a~ at least illustrates the possibility of such

hostility. Use of a subpoena, as proposed by the dissent,

would be of no utility in face of a policy of destroying

evidence. And unless the policy were publicly announced,

it probably would be difficult to show the impracticality

of a subpoena as opposed to a search warrant.

At oral argument, counsel for respondent stated

that the announced policy of the Stanford Daily conceivably

could have extended to the destruction of evidence of ~gy

crime:

-

-· •• ... ,I

76-1484 & 76--1600-CONCUR (A)

2 ZURCHEll v. STANFORD DAILY

This is not to say that a warrant which would be sufficient to support the search of an apartment or an automobile neces-sarily would be reasonable in supporting the search of a newspaper office. As the Court's opinion makes clear, ante, at 16, 17, the magistrate must judge the reasonableness of every warrant in light of the circumstances of the particular case, carefully considering the description of the evidence sought, the situation of the premises, and the position and interests of the owner or occupant. While there is no justifica,-tion for the establishment of a separate Fourth Amendment procedure for the press, a magistrate asked to issue a warrant for the search of press offices can and should take cognizance of the independent values protected by the First Amendment~ such as those highlighted by the dissent-when he weighs such factors. If the reasonableness and~ requirements are f'u·ti 'vl(.lf.'tfy thus applied, the dangers perceived-by the -dissenting opinion are likely to be minimaiP Ibid.

· - In any event, considerations such as these are the province of the Fourth Amendment. 'There is no authority either in history or in the Constitution itself for exempting certai classes of persons or entities from its reach.~

~ililoW~>!!e8!M~•-t~~!@lolifl'l'8iiiio-oiil-oiwoli•Loi.llUliiooOil6lliililQll•~' a eunce olicy of destroying any photographs that might aid--JY!'lJ'§ecution of pro estors. AppPndix 118, 152-153. at oral- argument., counsel for rPspond e~t stated that this. policy. cbhce~vably could have extended to thP destr -

"QUESTION: Let us assume you had a picture of the commission of a crime. For example, in banks they take pictures regularly of, not only of robbery but of murder committed in a bank and there havE' bPen pic-tures taken of the actual pulling of the triggpr or the pointing of the gun and pulling of the trigger. There is a very famous one related to the assassination of President, KennPdy.

"What. would the policy of the Stanford Daily bP with respect. to that? Would it feel free to destroy it at any time before a subpoPna. had been .served?

"MR. F ALI

76-1484 & 76-1600 (A)


to give an affirmative answer. I find it. hard to believe that in an example such as that., that the policy would have been carried out.. It was 11ot addressed to a picture of that kind or in that context.



Powell just described and the pictures they were thought to have? "MR. FALK: Well, it simply is a distinction that-"QUESTION: Attacking police officers intead of the President. That

is the only difference." While the exi~:~tencr of this policy wa~> not before the magistrate at the time of the warrant's issuance, 353 F. Supp. 124, 135 n. 16 (ND Cal. 1972), it illustratrs the possible danger~ of creating separate standards for the press alone,

.'

'SUPREME COURT OF THE UNITED STAT~

Nos. 76-1484 AND 76-1600

.James Zurcher, Etc., et al., Petitioners, 76-1484 v.



7(}-1600 v. The Stanford Daily et al.

[May-, 1978]


On Writs o'f Certiorari to the United .States Court of Appeals for .the Ninth Circuit.

I join the opinion of the Court, and I write simply to emphasize what I take to be the fundamental error of ~ dissenting opinion. As I Ulldersta.nd ~he di~wt, it would read into the Fourth Amendment, as a new and per se exception, the rule that any sea.rch of an entity protected by the Press ·Clause of the First Amendment is unreasonable so long as a subpoena could be used as a substitute procedure. Even aside

. from the difficulties involved in deciding on a case-by-case basis whether a subpoena can serve as an adequate substitute,'

t For example, respondent had announce.cl a policy of destroying any photographs that might, aiel pro:;ecution of protestori:l. App. 118, 152-153. While this policy probably reflected the deep feeling:; of the Vietnam era, and one may a::;sume that under normal circum:;tance:s few, if any, press entities would adopt a policy so hostile to law t>nforcement, respondent's

· policy at. least illn:;t.ra.tt·:o: t)l(l possibility of such hostility. Use of a sub~ poena , as proposed by the dissent would be of no utilit~· in face of a policy of destroying evidence. And unlrss the policy were publicly an-nounced, it. probably would br difi-lcult t.o show the impra.ctjcality or a :subpoena as opposed to a search warrant ..

At oral argument, coun~el for re:spond.ent stated that the announced

76-1484 & 76-1600-CONCUR (A)


agree with the Court t.hat there is no constitutional basis for ch a reading. ffthe Framers had believed that the press was entitled to

a special procedure, not available to others, when govern-ment authorities required evidence in its possession, one would have expected the terms of the Fourth Amendment to reflect that belief. As the opinion of the Court points out, the struggle from which the Fourth Amendment emerged was that between Crown and press. Ante, at 15. The Framers were painfully aware of that history, and their response to it was the Fourth Amendment. Ante, at 17. Hence, there is every reason to believe that the usual procedures contem-

policy of the Stanford Daily conceivably could have

i6-1484 (\: 76-1600-CONCUR (A)

ZURCHER v. STANFOHD DAlLY 3

·plated by the Fourth Amendment do indeed apply to the press, as to every other person.

This is not to say that a warrant which would be sufficient to support the search of an apartment or an automobile neces-sarily would be reasonable in supporting the search of a newspaper office. As the Court's opinion makes clear, ante, at 16, 17, the magistrate must judge the reasonableness of every warrant in light of the circumstances of the particular case, carefully considering the description of the evidence sought, the situation of the premises, and the position and interests of the owner or occupant. While there is no justifica-tion for the establishment of a separate Fourth Amendment procedure for the press, a ma.gistrate asked to issue a warrant for the search of · press offices can and should take cognizance

I he independent values protected by the First Amendment-

such as those highlighted by tile aietnt=-when he weighs such factors. If the reasonableness and particularity requirements are thus applied. the dangers pereeived e.y..the EliBE!eB~ing~"'

.~~~~are likely to be mi11imaP Ibid . ..__

S\-M,\Ml1) ~ MajV'I~+v&e- I">\ C~

{> bf o s e.el. s eo. r J.-. J.ire..duf.. d- ~ "(hi'('~ p().(~'/) 1ojt~ w \-\'\.. fk v{,. ~vJ Oi*f18rtin~ the view that the Fourth Amf'ndment contains an implied except.ion for the press, through the operation of the Firi:it Amendment. , .

"fhe IJJ 811Mal>1tr~ concurrence legcL llA 6?1~]18Pt te thid u ie Yi~ ~ noted only that. in considering a mohon to qua~h a subpoena directed to a newsman , the court ~hould balance the competing value:s of a frf'e press and the societal intere:;t in df'tecting and prosecuting crime. Thf' concurrence expre~S::;ed no doubt as to the applicability of the subpoena procedure to member~; of the press. Hather than advocating the creation of a ;;pecial proci>d.ural exception for tlw press, it approved reeognition of Fir~t Amend-

76-1484 & 76- 1600-CONCUR (A)

4 ZURCHER v. STANFORD DAlLY

ment conct>rns within the applicablt> procedure. The COIH'Ilrring opmwn may, however, properly be read a:-; ~upporting thP view c•xprt>s:-;ed in the text above, and in thE• Court's opinion, that. under the warrant requirt'-ment of the Fourth Amendment. the magistral:; of a free press as well as the ::>ocictal interel:it in enforcing tht> criminal laws.

Insert for Zurcher

Although the First Amendment does not, ex proprie

~MrraR&&9 s&a•eR a per se barrmer to searches

proper under the Fourth Amendment, it does provide

an independent source of constitutional protection

for the press and other speakers that the magistrate

should consider in determining the reasonableness

of a particular warrant application and making provision

for the particularity requirement of the Warrant

Clause.

1st D1tAFT

SUPREME 'COURT OF THE UNITED STA'mJ Nos. 76-1484 AND 76-1600





[May -, 1978]



I join the opinion of the Court, and I write simply to emphasize what I take to be the fundamental error of the dissenting opinion. As I understand the dissent, it would read into the Fourth Amendment, as a new and per se exception, the rule that any search of an entity protected by the Press Clause of the First Amendment is unreasonable so long as a; subpoena could be used as a substitute procedure. Even aside from the difficulties involved in deciding on a case-by-case basis whether a subpoena can serve as an adequate substitute,r.

1 For example, respondent had announced a policy of destroying· any photographs that might aid prosecution of protestors. App. 118, 152-153:.. While this policy probably reflected the deep feelings of the Vietnam era, and one may assume that under normal circumstances few, if any, press entities would adopt a policy so hostile to law enforcement, respondent's policy at least illustrates the possibility of such hostility. Use of a sub-· poena, as proposed by the dissent would be of no utility in face of a policy of destroying evidence. And unless the policy were publicly an-nounced, it probably would be difficult to show the impracticality of a subpoena as opposed to a search warrant.

At oral argument, counsel for respondent st.ated that the announced

76-1484 & 7G-1600-CONCUR (A)


I agree with the Court that there is no constitutional basis for such a reading.

If the Framers had believed that the press was entitled to a special procedure. not available to others. when govertl-ment authorities required evidence in its possessiou. one would have expected the terms of the Fourth Amendment to reflect that belief. As the opinion of the Court poi11ts out. the struggle from which the Fourth Amendment emerged was that between Crown and press. Ante, at 15. The Framers were painfully aware of that history, and their respoiJse to it was the Fourth Amendment. Ante, at 17. Hence. there is every reason to believe that the usual procedures coutem-

policy of the Stanford Daily concrivabl.v could havr extrndrd to the destruction of rvidPnCP of any crimP.:

"QUESTION: Let u::; a::;o~umr you had a picture of thP commi::;siou of a crime. For examplP, in banks they take pictures regularly of, not only of robbery but of murder committed in a bank and therP have been pic-tures taken of the actual pulling of the trigger or the pointing of the gun and pulling of the trigger. ThPre is a very famous Oilt' related to the assassination of President. KennPcly.

"What would the policy of the Stanford Daily be with respect to that? Would it feel free to destroy it at any time before a t:mbpoena. had been served?

"MR. F ALK: The-literally read, the policy of the Daily requires me to give an affirmative answer. I find it. hard to believe that in an example such as that, that the policy would have been carried out.. It was not addressed to a picture of that kind or in thtandards for the prrs~ alone,

76-1484 & 76-1600 (A)


tjlated by the Fourth Amendment do indeed apply to the press, as to every other person.

This is not to say that a warrant which would be sufficient to support the search of an apartment or an automobile neces-sarily would be reasonable in supporting the search of a newspaper office. As the Court's opinion makes clear, ante, at 16, 17, the magistrate must judge the reasonableness of every warrant in light of the circumstances of the particular case, carefully considering the description of the evidence sought, the situation of the premises, and the position and interests of the owner or occupant. While there is no justifica-tion for the establishment of a separa.te Fourth Amendment procedure for the press, a magistrate asked to issue a warrant for the search of press offices can and should take cognizance of the independent values protected by the First Amendment-such as those highlighted by the dissent-when he weighs such factors. If the reasonableness and particularity requirements are thus applied. the dangers perceived by the dissenting opin-ion are likely to be min imaP I b1:d.

In any event, considerations such as these are the province of the Fourth Amendment. There is no authority either in history or in the Constitution itself for exempting certain classes of persons or entities from its reach.

2 Moreover, there is no reason why police officers executing a warrant. should not seek the cooperat.ion of the iSilbjeet party , in order to prevent needlP:;;.~ di:mtption.

ROC 5/18/78

Rider in Zurcher, p. , new footnote --/:

~ I The dissent quotes the concurring opinion in

Branzburg v. Hayes, 408 U.S. 665, 709-710 (1972) (POWELL,

J., concurring), in support of the proposition that the

Fourth Amendment must be read as containing an implied

exception for the press, through the operation of the

First Amendment. Post, at 5,6. The Branzburg concurrence

supports no such proposition. It noted only that in

considering a motion to quash a subpoena directed to a

newsman, the court should balance the competing values of

a free press and the societal interest in detecting and

prosecuting crime. The concurrence never expressed doubt

that the supoena procedure was legitimately applied 1'~

members of the press. Far from advocating the creation of

special procedural exceptions for the press, it approved

of the recognition of special First Amendment concerns

within the clearly applicable procedure. Hence, that

opinion is properly read as support for the proposition

here put forward: in attempting to apply the relevant

procedure here, the warrant requirements of the Fourth

Amendment -- the magistrate is bound to consider the

conflicting values of a free press and the societal

interest in apprehending criminals.

!.1'. •'

Pnr 5/1 R --

Rider in Z11r~her, p. , new footnote 3 /:

~I f?'--PMA-

The dissent quotes the concurring opinion in /\

Branzbur_g_ v. Hayes, 408 U.S. 665, 709-710 (1972) (POWELL,

()A/~V~~~ J., concurring), ~ft.....-gf Hle prepeiiition that the

) ~

Fourth Amendment .mus~ be ~ad as contain~ an implied 1'\

exception for the press, through the operation of the

First Amendment. Post, at 5,6. The Branzburg concurrence

.L~ ··1A.;f!J 1-o ~ vWJ, 1\ support~tlCfl ~ropos±tion. It noted only that in

considering a motion to quash a subpoena directed to a

newsman, the court should balance the competing values of

a free press and the societal interest in detecting and

·~ prosecuting crime. The concurrence A'iJ~ expressed!\ doubt

~~~~~~! . ~supoenai>l"

Documents

e~~ehee. archives/76-1484... · 2012. 3. 8. · e~~ehee. See post, at 7. If the Framers had believed that the press was entitled ~o a special set·of procedures when government authorities

eehee. archives/76-1484... · 2012. 3. 8. · eehee. See post, at 7. If the Framers had believed that the press was entitled ~o a special set·of procedures when government authorities